Opinion
Index 19-0333
04-26-2019
In the Matter of the Application of MICHAEL J. OVERBAUGH, Petitioner-Objector, v. DIANA E. BENOIT, Respondent-Candidate BRENT BOGARDUS, AND MARIE METZLER, COMMISSIONERS CONSTITUTING THE GREENE COUNTY BOARD OF ELECTIONS, Respondents. RJI No. 19-19-0496
Law Office of James E. Long, Esq. Attorney for Petitioner By: James E. Long, Esq. A. Joshua Ehrlich, Esq. Attorney for Respondent Edward I. Kaplan, Esq. Greene County Attorney Attorney for Respondents, Greene County Board of Elections 411 Main Street Catskill. New York 12414, -------
UNPUBLISHED OPINION
Motion Return Date: April 18, 2019
Law Office of James E. Long, Esq. Attorney for Petitioner By: James E. Long, Esq.
A. Joshua Ehrlich, Esq. Attorney for Respondent
Edward I. Kaplan, Esq. Greene County Attorney Attorney for Respondents, Greene County Board of Elections 411 Main Street Catskill. New York 12414,
DECISION & ORDER
Julian D. Schreibman, JSC
This is a special proceeding under Election Law § 16-102 initiated by Verified Petition dated April 15, 2019. Pursuant to the Order to Show Cause signed by the Hon. Lisa A. Fisher, this Court conducted a fact hearing on April 18, 2019.
Petitioner seeks to invalidate certain signatures on the Republican Party designating petitions for the office of Sheriff of Greene County submitted on behalf of candidate Diana Benoit and, in turn, to invalidate candidate Benoit's petitions in their entirety as permeated by fraud. For the reasons set forth below, the Petition is granted to the extent of invalidating all petition sheets witnessed by Daniel Benoit, and is otherwise denied.
Although the Verified Petition questioned the validity of multiple signatures on candidate Benoit's petitions, Petitioner presented evidence at the hearing concerning only one signature -that of Mrs. Christine Brandow, which appears at line 7 of Sheet No. 25 of Ms. Benoit's petitions. (Pet.Ex.1). Petitioner alleges that Mrs. Brandow did not sign the petition but rather that her husband signed both her name and his own (line 6). This is not permissible and, if true, would invalidate her signature. Sheet No. 25 was witnessed by Daniel Benoit, the husband of the candidate. Petitioner argues that, if in fact Mr. Brandow signed both bis own and his wife's name, then Mr. Benoit's witness certification is false. Petitioner argues that Mr. Benoit's alleged misconduct should be imputed to his wife the candidate and therefore that the petitions be deemed permeated with fraud without further specific proof under the authority of Mattice v Hammond (131 A.D.3d 790 [3"1 Dept. 2015]).
Petitioner's Exhibit 1 is a copy of the entire package of Republican designating petition pages submitted by candidate Benoit. Exhibit 1 itself is neither bound nor page numbered but comprises 57 pages consisting of the record certification from the Board of Elections, the cover sheet for the petitions, followed by 55 individually numbered petition sheets.
The Court observes that if Respondent had conceded that Mr. Brandow had mistakenly been permitted to sign for his spouse, then the invalidation of the entirety of candidate Benoit's petition - constituting hundreds of signatures whose validity is not challenged - would be an excessive remedy and likely an abuse of discretion. (See, e.g., Matter of Nolan v McNulty, 87 A.D.3d 804, 805 [3"» Dept. 2011]; Matter of McHugh v Cornelia, 307 A.D.2d 1069, 1069-70 [3rdDept. 2003]) However, the parties here do not merely disagree about the legal implications of the facts - they disagree about the facts themselves. Under these circumstances, the Court is required to review the evidence presented and reach findings of fact, which in this case require determinations of credibility.
Four witnesses testified: Mr. Brandow, Mrs. Brandow, Mr. Benoit and Mr. William Nicholas, an individual who was present when Mr. Benoit visited the Brandow household and whose girlfriend serves as candidate Benoit's campaign manager.
Mrs. Brandow testified unambiguously that she did not sign the petition and that the handwriting on line 7 of Sheet 25 is not her own. She identified the handwriting on the petition as appearing the way her name looks when her husband signs it (explaining that they have been married for 40 years and that they each sign each other's names freely and with permission). Mrs. Brandow acknowledged that she spoke with Mr. Benoit and Mr. Nicholas that day, but stated that she was occupied with a telephone conversation when they came to her door and that she directed them to speak to Mr. Brandow who was in his woodshop.
Mr. Brandow testified mat he signed his wife's name to the petition and identified the handwriting on the petition on both lines 6 and 7 as his own. He did not believe that he was asked to do so, but rather suggested that he did it automatically as a matter of course.
Mr. Benoit and Mr. Nicholas testified in direct contradiction of the Brandows. Both insisted that after speaking with Mr. Brandow in his woodshop they then knocked on a different door to the home - a back or kitchen door - where they again spoke with Mrs. Brandow and she then signed the petition. Consistent with this position, Mr. Nicholas acknowledged visiting the Brandow home again with other representatives of the Benoit campaign, after the filing of this proceeding, in an unsuccessful effort to get Mr. Brandow to sign an affidavit that he had not signed his wife's name.
In addition to the witness testimony, the parties invited the Court to compare the penmanship on lines 6 and 7 of Sheet No. 25 as well as to compare the purported signature of Mrs. Brandow on line 7 with her acknowledged signature on her affidavit which is an exhibit to the Verified Petition. No other testimony or physical evidence was introduced.
The Court finds the testimony of the Brandows to be credible and supported by the-physical evidence. The Court finds the testimony of Mr. Benoit and Mr. Nicholas to be not credible.
Mr. and Mrs. Brandow are disinterested witnesses. No evidence was adduced to suggest that they have any interest in the outcome of this case or the election for Sheriff of Greene County. They were not identified as being connected to any persons associated with any political office or campaign, much less the respective campaigns for Greene County Sheriff. Mr. Nicholas testified that neither he nor Mr. Benoit knew the Brandows - they were simply names on a list of enrolled Republicans provided by the Board of Elections.
The Court has considered the possibility that the Brandows' memory could be mistaken. Both are seniors who testified to effectively being distracted at the time of the visit - Mrs. Brandow with her telephone call and Mr. Brandow with his wood-working. In addition, whereas the act of collecting petitions was obviously important to the campaign, this was not a particularly important event in the daily life of the Brandows. Nonetheless, the Brandows' memory of receiving these visitors was clear and the events took place barely one month before the commencement of these proceedings.
Both Mr. Benoit and Mr. Nicholas are interested witnesses. Mr. Benoit is the spouse of the candidate. Mr. Nicholas is the romantic partner of the candidate's campaign manager. The invalidation of candidate Benoit* s signatures -particularly if it was their fault - could be expected to impact their own lives. Moreover, while the petitioning process was obviously more important to Respondent's witnesses, the Brandow household was just one of scores, if not hundreds, they visited, whereas for the Brandows this was a unique event.
Generally speaking, the version of events that makes more sense is the version of events that is true. It makes more sense that the Brandows' account is accurate. Spouses accustomed to signing each others names cannot be expected to know that it is not permissible on designating petitions and this sort of error, all sides agree, is common. The testimony of both Brandows was direct and adamant and neither was shown to have any reason to deceive.
Significantly, the physical evidence supports the Brandows' testimony. The signatures on lines 6 and 7 of Sheet No. 25 appear to be made by the same hand. Among other similarities, both last names rise gradually upward. In one respect, the two "Brandows" look different - but even. mat difference supports the Petitioner here. While Mr. Brandow's last name is fully signed in cursive, for Mrs. Brandow's name the signer capitalized both the "B" and the "R" as if beginning to print it in block letters, before reverting to a signature format. Meanwhile, the signature of Mrs. Brandow on her affidavit is obviously different from the signature on Line 7 of Sheet No. 25 - the shape of several letters being noticeably different.
"Judicial scrutiny is adrift if it lacks a defined scope of review." (Matter of Joint Diseases North General Hospital, 148 A.D.2d 873 [3rd Dept 1989]). The evidentiary standard in this proceeding requires Petitioner to prove his case by clear and convincing evidence. "The clear and convincing evidence standard means that petitioner must establish that the evidence makes it highly probable that what it claims is accurate." (In re Duane J7, 151 A.D.3d 1129, 1130 [3rd Dept, 2017] (internal quotation marks and citation omitted)). The Court finds that Petitioner has met its burden here with the testimony of two disinterested witnesses, whose testimony is logical and persuasive, and is buttressed by the physical evidence in the case. Respondent has offered only the non-credible testimony of its witnesses in opposition.
Accordingly, the Court finds, by clear and convincing evidence, that the purported signature of Christine Brandow on line 7 of Sheet No. 25 of candidate Benoit's petitions is not genuine and is invalid.
As indicated above, the mere .presence of an invalid signature., even if collected by a candidate - let alone the candidate's spouse - is generally insufficient to invalidate the entire set of petition pages submitted on behalf of the candidate without proof that the invalid signature was part of a pervasive program of fraud in the campaign. No such evidence was presented here.
The Court must consider, however, that in this proceeding both Mr. Benoit and Mr. Nicholas gave sworn factual testimony that the Court has found to be not credible. Although the Court is reticent to find that these witnesses knowingly gave false testimony, the Court considers it highly unlikely that their testimony was the product of genuinely faulty (yet highly detailed) errors in memory. In light of the conclusion that Mr. Benoit is not a reliable witness, the Court concludes that an appropriate remedy is to strike each and every petition sheet as to which he served as the witness to the signatures.
Mr. Nicholas did not formally witness any signatures. If he had, the Court would invalidate those signatures as well.
The Court finds, however, that imputing this fraud to the candidate and extending this remedy to the entire set of petitions filed for candidate Benoit would be excessive and would unduly impair the rights of the voters who legitimately signed their names on petitions not witnessed by Mr. Benoit to place her on the ballot. In reaching the conclusion that the finding regarding the testimony of Messrs. Benoit and Nichols does not constitute fraud permeating the campaign, the Court notes that the fact that the campaign sent a delegation to try to get Mr. Brandow's supporting signature suggests that the campaign believed their witnesses' version of events.
Evidence was not presented to the Court concerning the number of valid signatures required for candidate Benoit to qualify for the ballot. Accordingly, the Court is not aware - other than to the extent of observing that Mr. Benoit witnessed only approximately 10-15% of the total signatures - of whether the remedy it is imposing will have the effect of reducing Ms. Benoit below the required threshold. The Court's decision is based on the testimony of Mr. Benoit and the affected petition pages and not on any determination as to whether the candidate should or should not be on the ballot.
Based on the foregoing, it is hereby
ORDERED that the following pages of Respondent's Republican Party Designating Petitions are declared invalid: Sheet No. 8, Sheet No. 20, Sheet No. 25, Sheet No. 28, Sheet No. 29, Sheet No. 42, Sheet No. 49, and Sheet No. 52; and it is further
ORDERED that Respondent Greene County Board of Elections shall review Respondent's petitions, the foregoing pages having been stricken, to determine her eligibility to be placed on the ballot and proceed in accordance with such determination.
This shall constitute the Decision and Order of the Court. The original Decision and Order and all other papers are being delivered to the Supreme Court Clerk for transmission to the Greene County Clerk for filing. The signing of tins Decision and Order shall not constitute entry or tiling under CPLR §2220. Counsel is not relieved from the applicable provisions of that rule regarding notice of entry.
SO ORDERED.